New Zealand judge orders US to hand over Megaupload documents

Questions whether civil copyright violations can lead to criminal liability

Megaupload founder Kim Dotcom and his co-defendants scored a significant victory on Tuesday when a New Zealand judge ordered the United States government to hand over evidence the defense will need to prepare for an upcoming extradition hearing. He rejected the government's argument that the defendants should make do with the information about its case the government itself chose to introduce in court.

The judge's comments in the 81-page decision, which was provided to Ars Technica by Dotcom attorney Ira Rothken, suggest that he is conscious of Dotcom's trying circumstances and the unusual nature of the case against him. "Actions by and on behalf of the requesting State have deprived Mr. Dotcom and his associates of access to records and information," wrote Judge David Harvey, alluding to the fact that dozens of hard drives were taken from the Dotcom mansion during the January raid and have not been returned. Dotcom, Judge Harvey wrote, "does not have access to information which may assist him in preparation for trial."

Harvey described the case as "more complex than many. The United States is attempting to utilise concepts from the civil copyright context as a basis for the application of criminal copyright liability," he wrote. That "necessitates a consideration of principles such as the dual use of technology and what they be described as significant non-infringing uses."

Rothken said that Judge Harvey's discussion of these issues is a good omen for his client. "It's our view that there's no such thing as a criminal Grokster," he told us, referring to the landmark Supreme Court decision that established copyright liability for inducing copyright infringement by others. In civil cases like Grokster, defendants faced only financial penalties, not jail time. Some legal scholars have expressed skepticism that inducing others to infringe copyrights can be the basis for criminal copyright liability.

An extradition hearing is intended to be much quicker and simpler than a criminal trial, but Judge Harvey must still determine whether the US government has a plausible case for Dotcom's guilt. With a trove of documents furnished by the United States, the Dotcom legal team will be better positioned to argue that it doesn't.

In a separate ruling, Judge Harvey allowed Dotcom to return home to his mansion. He had been barred from the mansion because it was not suitable for the electronic monitoring system he was ordered to wear. He and his family were forced to move to another house nearby. But Judge Harvey has concluded Dotcom is not a flight risk and freed him from electronic monitoring requirements, allowing him to return home.

Timothy B. Lee
Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times. Emailtimothy.lee@arstechnica.com//Twitter@binarybits

77 Reader Comments

I am willing to wager that the US does the equivalent of giving NZ the middle finger with some sort of legal shenanigans such as "the drives are being analyzed and this process cannot be interrupted until *just before trial so you can't build a defense*"

I have absolutely no faith in the US government/legal system working within conventional law on this case. It's been made clear that they are the hired guns of the MAFIAA.

I am willing to wager that the US does the equivalent of giving NZ the middle finger with some sort of legal shenanigans such as "the drives are being analyzed and this process cannot be interrupted until *just before trial so you can't build a defense*"

I have absolutely no faith in the US government/legal system working within conventional law on this case. It's been made clear that they are the hired guns of the MAFIAA.

I'm willing to wager that this not the case.

Its simple, if the US does not give back the drives, then why on earth would the judge whom ordered them back in the first place grant their extradition request?

This ruling all but assures NZ holds the trump card here, not the US government..

P.S Do you people truly think that Kim Dotcom is in the right here? Don't get me wrong I used megaupload for many perfectly legal filesharing purposes, but I think it would be naive to claim that a large amount megaupload content was not illegal.. Now of course someone downloading illegal content does not necessarily equal a loss of sale (and rarely does), but that hardly means that anyone should have the legal right to build a business based upon it.. As a result I find it very hard to root for either side here.. Both seem in the wrong IMO..

The judge can rule all he wants, but that doesn't mean the U.S. will do anything more than give the judge a rude gesture. After all, the DOJ believes the U.S. law is valid all over the world and supersedes any local law.

P.S Do you people truly think that Kim Dotcom is in the right here? Don't get me wrong I used megaupload for many perfectly legal filesharing purposes, but I think it would be naive to claim that a large amount megaupload content was not illegal.. Now of course someone downloading illegal content does not necessarily equal a loss of sale (and rarely does), but that hardly means that anyone should have the legal right to build a business based upon it.. As a result I find it very hard to root for either side here.. Both seem in the wrong IMO..

He might be in the wrong but everyone deserves a fair hearing. So far US Government has been actively trying to avoid that process in Dotcom case; at least as far as extradition is concerned.

I am very happy to see this turn of events, and I hope that things continue in like kind. A few weeks back, I was on a website that collects together freely distributable materials for people to import into Second Life and various OpenSim virtual worlds. Premade objects, textures (that is, the graphics to be applied onto objects and clothes), and scripts. I needed a particular script to make a vending device in one of the opensim grids, and I found one that looked perfect for the job. But then it turned out the actual script was stored at one of these file-locker sites... who had *turned* *off* downloading for everyone except whoever uploaded the file on all their publicly stored files because what had happened to MegaUpload had scared them to death. After a bit more poking around on the particular website, it turned out that a LOT of things available there had been stored on that particular bitlocker site, though many other files had been stored on other sites, or locally to that website. But the ones I most wanted or needed.... I can't get!

Every time I come across some thing like that, all my frustration about the injustice of what happened to MegaUpload floods back in, and I find myself wanting Kim Dotcomm to win his case, reopen MegaUpload, and succeed in all his business plans after that.... and for this to *SHAME* all these other bitlocker companies into opening *THEIR* stored stuff back up to the public again, and if they *don't* get shamed, that MegaUpload eats their frakking LUNCH!

And this coming from someone who didn't really USE MegaUpload that much. In fact, I'm not sure if I've ever actually dloaded anything from them or not, because you don't pay much attention to WHERE the file is you're dloading when it's linked to from some other site -- say, a manga fansite providing works translated into English, or some fan-made game-modules site -- until the link *stops* *working* or gives you one of these "We're sorry..." messages,

The judge can rule all he wants, but that doesn't mean the U.S. will do anything more than give the judge a rude gesture. After all, the DOJ believes the U.S. law is valid all over the world and supersedes any local law.

I am willing to wager that the US does the equivalent of giving NZ the middle finger with some sort of legal shenanigans such as "the drives are being analyzed and this process cannot be interrupted until *just before trial so you can't build a defense*"

I have absolutely no faith in the US government/legal system working within conventional law on this case. It's been made clear that they are the hired guns of the MAFIAA.

I'm willing to wager that this not the case.

Its simple, if the US does not give back the drives, then why on earth would the judge whom ordered them back in the first place grant their extradition request?

This ruling all but assures NZ holds the trump card here, not the US government..

P.S Do you people truly think that Kim Dotcom is in the right here? Don't get me wrong I used megaupload for many perfectly legal filesharing purposes, but I think it would be naive to claim that a large amount megaupload content was not illegal.. Now of course someone downloading illegal content does not necessarily equal a loss of sale (and rarely does), but that hardly means that anyone should have the legal right to build a business based upon it.. As a result I find it very hard to root for either side here.. Both seem in the wrong IMO..

I don't necessarily think Dotcom is right, but I think he deserves proper due process. This case has been anything but. The US government is pulling every shady move they can to the point of embarrassment. I hope the judge deny's extradition because I don't think Dotcom would be treated fairly once the US gets their hands on him.

I'm also not sure that any of this warrants the criminal charges and tactics being used here. If Megaupload is guilty of infingement thats fine- sue them for billions. I don't think prison time for running a file locker site is particularly fair. What harm was done? He didn't crash the stock market, he didn't cost people their life's savings, and he didn't cost them their homes. He did possibly cost the entertainment industry some potential sales. By comparison to what people in the financial industry did, Dotcom's sins are pretty mild. They didn't do time so why should he? The punishment should fit the crime and I don't think it does here.

The judge can rule all he wants, but that doesn't mean the U.S. will do anything more than give the judge a rude gesture. After all, the DOJ believes the U.S. law is valid all over the world and supersedes any local law.

If that's the case then the NZ judge will just give a rude gesture back to the U.S. and deny the motion to extradite Dotcom for failing to provide sufficient evidence.

P.S Do you people truly think that Kim Dotcom is in the right here? Don't get me wrong I used megaupload for many perfectly legal filesharing purposes, but I think it would be naive to claim that a large amount megaupload content was not illegal.. Now of course someone downloading illegal content does not necessarily equal a loss of sale (and rarely does), but that hardly means that anyone should have the legal right to build a business based upon it.. As a result I find it very hard to root for either side here.. Both seem in the wrong IMO..

No, I don't think Kim Dotcom is in the right, I think the U.S. Government is in the wrong. I would love to see Kim Dotcom prosecuted according to due process and legal precedent, or on the grounds of reasonable new precedent, but I am completely opposed to the U.S. Government acting on behalf of Hollywood lobbyists and defecating on the U.S. Constitution in the process.

The judge can rule all he wants, but that doesn't mean the U.S. will do anything more than give the judge a rude gesture. After all, the DOJ believes the U.S. law is valid all over the world and supersedes any local law.

If they don't comply with the rulings, they don't get the extradition they're after. Simple.

Which would be fine with me. As an NZ citizen, I object on principle to handing people over to foreign powers with excessive approaches to punishment. Think the Tenenbaums and Thomases of this world, for example.

P.S Do you people truly think that Kim Dotcom is in the right here? Don't get me wrong I used megaupload for many perfectly legal filesharing purposes, but I think it would be naive to claim that a large amount megaupload content was not illegal..

It's not a question of whether the content is illegal, it's a question of who is responsible for it. The US marines did not smash into the home of american airlines CEO with assault riffles after september eleven.

Please explain to be why the guy who runs MegaUpload should be sent to prison, but the guy who runs dropbox is perfectly fine? I cannot see strong *legal* distinction between the two companies.

Both services can be used to share copyrighted material, and both services are regularly used to do so.

Perhaps dropbox tries harder to prevent copyright infringement, I don't know. Mega Upload claims they did everything required of them by law with respect to the digital millennium copyright act.

So no, I'm not convinced MegaUpload did anything wrong. MegaUpload's customers certainly did, but I'm not convinced MU is liable for their actions. It will be interesting to see what comes out of the lawsuit.

But most of all, I'm disgusted at how this entire case has treated him as guilty-unless-proven-innocent. The first he learned of it was heavily armed police charging into his house, for something that may not even be a crime at all! One of the worlds largest websites was knocked off the internet several months, possibly years, before a trial even *begins* to see whether or not what he did is illegal.

If they rule on the legality of copyright infringement 'costing corporations sales', then it is just another step to jailing people for telling others that a product is bad, thus 'costing corportations sales'.

The USA has become so paranoid since 9/11 that it does not surprise me whatever it does. Part of this paranoia is justified but the Congress has got into the habit, since the Patriot Act of believing that it can pass any constitutional dubious legislation it chooses. Maybe the president should just stop signing anything.

Can the president submit new laws to the Supreme court for a constitutional opinion before he signs them the way a Canadian Prime Minister can?

P.S Do you people truly think that Kim Dotcom is in the right here? Don't get me wrong I used megaupload for many perfectly legal filesharing purposes, but I think it would be naive to claim that a large amount megaupload content was not illegal.. Now of course someone downloading illegal content does not necessarily equal a loss of sale (and rarely does), but that hardly means that anyone should have the legal right to build a business based upon it.. As a result I find it very hard to root for either side here.. Both seem in the wrong IMO..

None of us know whether Megaupload broke any laws. That's the whole point. The burden of proof rests entirely on the US government to prove wrong-doing, and have probable cause to even investigate them. Right now the US government is operating on hearsay from the US copyright lobby, and using diplomatic pressure to force US law on a non-US citizen not living in the US.

Let's put it this way, imagine if you, a US citizen was visiting Germany, and said quite publicly Putin is a poopyhead, and Russia ordered Germany to extradite you on some trumped up charge (maybe his new Soviet-style anti-dissident laws), and supplied no evidence at all to justify the extradition, would you think that is just? How fair a trial would you reasonably expect when laws you're way way outside their jurisdictions are arbitrarily applied to you?

P.S Do you people truly think that Kim Dotcom is in the right here? Don't get me wrong I used megaupload for many perfectly legal filesharing purposes, but I think it would be naive to claim that a large amount megaupload content was not illegal.. Now of course someone downloading illegal content does not necessarily equal a loss of sale (and rarely does), but that hardly means that anyone should have the legal right to build a business based upon it.. As a result I find it very hard to root for either side here.. Both seem in the wrong IMO..

never thought I would cheer for kimdotcom, but when the assailant is as corrupt, vile and evil as the people coming after him, kimdotcom looks like a saint in comparison.

He's a shady character but even he deserves due process. It's not like we can't see the blatant sham this case has turned into (was from the start). Kim was guilty until proven innocent.

Under US system, everyone is innocent until found guilty. They cannot apply that as and when it fits themselves. Ever since 9-11, the government has been no better than North Korea or China in its application of the laws against people.

That is to say, this is how they operate and this is how they operate in this case: "Fuck the law and fuck the constitution, just steamroll anyone we are paid to steamroll. Who is going to stop us? screw them all!"

Kim dot com is basically the petty thief on a street corner. The US government under the supreme command of special interest are basically dropping tactical nuclear warheads in a distributed pattern over the street corner with the intent to destroy everything within 100 square miles, including civilians, infrastructure as well as the evidence. When faced with such vile corruption, kimdotcom looks pretty damn innocent in comparison.

Its simple, if the US does not give back the drives, then why on earth would the judge whom ordered them back in the first place grant their extradition request?

Because the US would add New Zealand to a "list of scary countries", require travel visas or otherwise enact barriers between the countries, pressure the government through all means possible, groom and support candidates that bow down to the US, and if all else fails, spread propaganda within New Zealand until it gets its way. That's the game and that's how the US plays. It happens pretty much everywhere, pretty much every year. It takes a leader strong enough that the US can't unseat him/her, smart enough that the US can't out-manoeuvre him/her, and nationalistic enough that (s)he stands for his/her country's interest over another's. For example, Putin.

Its simple, if the US does not give back the drives, then why on earth would the judge whom ordered them back in the first place grant their extradition request?

Because the US would add New Zealand to a "list of scary countries", require travel visas or otherwise enact barriers between the countries, pressure the government through all means possible, groom and support candidates that bow down to the US, and if all else fails, spread propaganda within New Zealand until it gets its way. That's the game and that's how the US plays. It happens pretty much everywhere, pretty much every year. It takes a leader strong enough that the US can't unseat him/her, smart enough that the US can't out-manoeuvre him/her, and nationalistic enough that (s)he stands for his/her country's interest over another's. For example, Putin.

Only if you think they will get green light throw away decades of work in foreign relations and trade negotitaions, not to mention all OTHER business with vested interests in NZ, to extradite one guy. Sure.

Its simple, if the US does not give back the drives, then why on earth would the judge whom ordered them back in the first place grant their extradition request?

Because the US would add New Zealand to a "list of scary countries", require travel visas or otherwise enact barriers between the countries, pressure the government through all means possible, groom and support candidates that bow down to the US, and if all else fails, spread propaganda within New Zealand until it gets its way. That's the game and that's how the US plays. It happens pretty much everywhere, pretty much every year. It takes a leader strong enough that the US can't unseat him/her, smart enough that the US can't out-manoeuvre him/her, and nationalistic enough that (s)he stands for his/her country's interest over another's. For example, Putin.

The guys going after kimdotcom have no power over international relations. They are separate branches and would be shut down by the guys who do deal in international relations. If they did, I guarantee, I will give up my citizenship because the US is forevermore lost and turned to the ruinous powers of chaos.

Besides that, you know you live in North Korea of America when your government would rather destroy a valuable ally in a high strategic region because of some guy who shared some mp3.

"If they rule on the legality of copyright infringement 'costing corporations sales', then it is just another step to jailing people for telling others that a product is bad, thus 'costing corportations sales'."

What makes you think that hasn't already happened? Google "Oprah Winfrey" and "beef"

Only if you think they will get green light throw away decades of work in foreign relations and trade negotitaions, not to mention all OTHER business with vested interests in NZ, to extradite one guy. Sure.

Yes, I absolutely positively do think the Obama administration is that arrogantly shortsighted.

AFIK dotcom hasnt been charged with anything that is either illegal in NZ or has extradition agreements with the US.

Just the straight up fact that the NZ police and (some) government were used as an extension of the US police and MPAA etc really gets under peoples skins here. Especially at a time when its looking like our government is being bought and paid for (by MPAA AND dotcom!)

We generally understand dotcom and megaupload are slightly dodgy (at least) but we hate abuse of power a lot more.

Only if you think they will get green light throw away decades of work in foreign relations and trade negotitaions, not to mention all OTHER business with vested interests in NZ, to extradite one guy. Sure.

Yes, I absolutely positively do think the Obama administration is that arrogantly shortsighted.

Edit: Deleted "stupid."

Administration might be, but there are number of companies and organizations other than RIAA with vested interests in NZ.

The judge can rule all he wants, but that doesn't mean the U.S. will do anything more than give the judge a rude gesture. After all, the DOJ believes the U.S. law is valid all over the world and supersedes any local law.

The Judge can just as easily rule prosecutorial misconduct.

And then, of course, Hollywood will pull a couple of dick moves:

a) Will threaten NZ with never film a movie/show down there and will ruin the economy of several small towns which will make the local population hate KimDotCom enough to make it okay to send him over to the USA.

And/or

b) Hollywood will buy enough NZ politicians and judges and send that pig to roast in an American jail.

AFIK dotcom hasnt been charged with anything that is either illegal in NZ or has extradition agreements with the US.

Just the straight up fact that the NZ police and (some) government were used as an extension of the US police and MPAA etc really gets under peoples skins here. Especially at a time when its looking like our government is being bought and paid for (by MPAA AND dotcom!)

We generally understand dotcom and megaupload are slightly dodgy (at least) but we hate abuse of power a lot more.

The judge can rule all he wants, but that doesn't mean the U.S. will do anything more than give the judge a rude gesture. After all, the DOJ believes the U.S. law is valid all over the world and supersedes any local law.

The Judge can just as easily rule prosecutorial misconduct.

And then, of course, Hollywood will pull a couple of dick moves:

a) Will threaten NZ with never film a movie/show down there and will ruin the economy of several small towns which will make the local population hate KimDotCom enough to make it okay to send him over to the USA.

And/or

b) Hollywood will buy enough NZ politicians and judges and send that pig to roast in an American jail.

They could. Or they could just shrug and move onto other battles. Like anything a company does, they are going to balance benefit vs cost. For a), why bother. Runing an economy, even for a small town, takes money and effort. It will b efar easier to keep going the way they do now; push US authorities to exert its own influence. For b), NZ politicians and judges are notoriously toothless. Politicians are already bending over backwards for Hollywood and it's done a fat lot of good for this case so far.

(NZ is considered one of the countries with least corrupt politicians in OECD. I personally think it's not because NZ politician has more integrity but because nobody bothers.)

Like anything a company does, they are going to balance benefit vs cost.

I'm not sure that's a concept the MafiAA has any ken of. Look at the money thrown at Tenenbaum or Thomas. What benefit? They're never going to see a cent of those quarter million dollar verdicts (and they're still going HOW many years later??).Any deterrent effect they had there is iffy at best, if that's what they were going for.

This is about ego and power. Read the indictment of Dotcom, you can almost feel the spittle-flecked indignant "how dare he" rage through the paper. They want him to burn, cost be damned.

Like anything a company does, they are going to balance benefit vs cost.

I'm not sure that's a concept the MafiAA has any ken of. Look at the money thrown at Tenenbaum or Thomas. What benefit? They're never going to see a cent of those quarter million dollar verdicts (and they're still going HOW many years later??).Any deterrent effect they had there is iffy at best, if that's what they were going for.

This is about ego and power. Read the indictment of Dotcom, you can almost feel the spittle-flecked indignant "how dare he" rage through the paper. They want him to burn, cost be damned.

It's really Tenenbaum who kept it up with apeals on damages.

Also you are talking entirely different scale of capital required. Screwing with economy of even a small town is going to be a massive undertaking; considering further that it's in a different country with different set of laws and regulations. Buying out politicians and judges aren't going to be trivial either. For Tenenbaum trial, I would think that they used internal resources to respond to the suits. They already won the battle, they just wanted to keep the damages high.

a) Will threaten NZ with never film a movie/show down there and will ruin the economy of several small towns which will make the local population hate KimDotCom enough to make it okay to send him over to the USA.

I'm not sure. The thing the MPAA fears most is competition, and New Zealand does have some potential to be at least a minor threat if they go it alone. They've got some big names like Peter Jackson, and some majestic locations to shoot.

The goal here is to trash KD by any means possible and make a big spectacle out of the whole thing for the whole world to see. The - very public - legal back-and-forth between US and NZ justice industries is very convenient without necessarily having been planned ahead. The bully is shaking down the little guy in front of the school, that is all.

I see from the comments above that the other students are watching in dismay but none can take on the bully. Do you really see NZ refusing to extradite KD ? Come on, now. That would be, hmmm, courageous...